1. This appeal arises out of a suit to enforce a mortgagebond executed by the defendant No. 1. The defendant No. 2, who is the purchaserof the equity of redemption in respect of one of the properties in Schedule IIat a sale held in execution of a decree upon a subsequent mortgage, and thedefendants Nos. 3 and 4, who were subsequently added as parties defendants tothe suit upon objection raised by the defendant No. 2, contested the suit. Thedefendant No. 2 in a written statement admitted that the defendant No. 1 hadexecuted the bond but pleaded that the bond was not a bona fide transaction andthat no consideration passed.

2. The Court of first instance decreed the suit, but thatdecree was reversed and the suit dismissed by the lower Appellate Court. Theplaintiff has appealed to this Court.

3. The first question for consideration is whether the lowerAppellate Court was right in holding the bond to be invalid because one of theattesting witnesses was not examined as required by Section 68 of the EvidenceAct. The learned Judge says: Under Section 59 of the Transfer of Property Act,the bond must be attested by two witnesses and under Section 68 of the EvidenceAct, one of the attesting witnesses must be examined to prove execution ifthere be an attesting witness alive and subject to the process of the Court andcapable of giving evidence. In this case one of the attesting witnesses is adefendant, another is related to the defendants and the third is a very old manwho is said to have lost his eyesight. Even if it be supposed that the firsttwo would not speak the truth, the third ought to have been examined, as thereis no evidence that he has lost his memory and no reason why he could not havespoken to the execution of the bond. Under the circumstances, it is quite clearthat Exhibit I cannot be used in evidence so that the plaintiffs claim mustfail on this ground."

4. Having regard to the admission of the defendants,however, we do not think that it was necessary to examine any attestingwitnesses in this case.

5. Section 70 of the Evidence Act lays down that "anadmission of a party to an attested document of its execution by himself shallbe sufficient proof of its execution as against him, though it be a documentrequired by law to be attested." The defendant No. 1, the mortgagor,admitted the execution of the bond and the defendant No. 2, who now representsthe interests of the mortgagor also, clearly admitted in his written statementthat the bond was executed by defendant No. 1, and it appears that he washimself an attesting witness to it. We think that the admission of thedefendants in the suit dispenses with the necessity of calling attestingwitnesses or giving any other evidence.

6. We may in this connection refer to the provisions ofSection 58 of the Evidence Act and Order XII, Rule 1, Civil Procedure Code.

7. But although an admission of execution dispenses with thenecessity of complying with the provisions of Section 68 of the Evidence Act asagainst the party making the admission, the said provisions must be compliedwith in order to prove the execution of a document as against other parties tothe suit who do not admit such execution. The document must be proved asagainst them in accordance with the provisions of Sections 68, 69 and 71. Thisview was taken by Woodroffe and D. Chatterjee, JJ. (Newbould, J. differing), inthe case of Satish Chandra Mitra v. Jogendra Nath Mahalanobis 31 Ind. Cas. 862: 20 C.W.N. 1044 : 24 C.L. 175 : 44 C. 345pc and the learned Judges held thatthe effect of Section 70 is that the proof by calling attesting witnesses isdispensed with when the party executant admits execution only as againsthimself. It may be pointed out that in that case Mr. Justice Woodroffe inreferring to the case of Jogendra Nath Mukhopadhya v. Nitai Churn Bundopadhyu: 7 C.W.N. 384 said that he was unable to agree with thedecision if it meant that even when the executant admits execution, hisadmission or proof of execution or signing only does not dispense with theproof of attestation.

8. So far as the defendants Nos. 1 and 2 are concerned,therefore, it was not necessary to call any attesting witnesses and thedocument must be taken to be a valid document as against them.

9. There are, however, defendants Nos. 3 and 4 who weresubsequently added as party defendants. It is contended on behalf of theappellant that they were not necessary parties to the suit. The defendant No. 2alone purchased the mortgaged property at an auction sale and the defendantsNos. 3 and 4 have been made parties only in order to obviate the objection thatthey were also interested in the purchase made by him. Under the circumstances,the plaintiff prays that the defendants Nos. 3 and 4 may be dismissed from thesuit and as they do not object, we order accordingly. Any question arisingbetween the plaintiff and the defendants Nos. 3 and 4 is left undecided.

10. The next question is whether the learned Judge was rightin holding that the plaintiff could not claim any right to the propertydescribed in Schedule II, as the mortgagor had no right to the property at thedate of the mortgage. There is no dispute that originally the mortgagor hadtitle to the property. It appears that at the date of the mortgage the titlehad passed to other persons; but before the defendant No. 2 acquired the equityof redemption, the title had come back to the mortgagor. Under thecircumstances, the provisions of Section 43 of the Transfer of Property Actwill come into operation. It is contended on behalf of the respondent that theequity cannot be enforced as against the defendant No. 2 who is a purchaser,but he himself was an attesting witness to the mortgage-bond-He is not,therefore, a bona fide transferee without notice. This contention must,therefore, be overruled.

11. The result is that the decree of the lower AppellateCourt will be set aside and that of the Court of first instance restored. Itwill, however, be stated in the decree that the defendants Nos. 3 and 4 aredismissed from the action and that all questions arising between the plaintiffand the said defendants are left open.

12. The plaintiff is entitled to costs of this Court and ofthe lower Appellate Court from the defendant No. 2, and the defendants Nos. 3and 4 will be entitled to their costs of this Court and of the lower AppellateCourt from the plaintiff.

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Nibaran Chandra Senvs. Nagendra Chandra Sen and Ors.(12.07.1917 - CALHC)